A new book that is a personal portrait of the first woman on the U.S. Supreme Court reveals Justice Sandra Day O’Connor’s successful maneuvering in Bush v. Gore, disillusionment with her successor, Justice Samuel Alito Jr., and her devastation over her cancer diagnosis.
Evan Thomas, author of the forthcoming “First,” had O’Connor’s cooperation and permission to speak with colleagues, friends and clerks. Thomas also had access to O’Connor’s papers — most of which are closed to the public at the Library of Congress — and to her private papers in her Supreme Court chambers.
Those private papers include personal correspondence, records, oral histories, an occasional journal of her early court years, the personal memoir of her husband, John, and his daily diary from when O’Connor joined the court in 1981 until he was overcome by Alzheimer’s in 2002.
In October, O’Connor, stepping back from public life, disclosed her dementia diagnosis. In an extraordinary letter to her friends and to the country, O’Connor expressed gratitude for “countless blessings in her life.”
Thomas, long a journalist, retired in 2010 as Washington bureau chief of Newsweek. What follows are some snippets from Thomas’s book, which is set for release March 19 by Penguin Random House.
>> Maneuvering in Bush v. Gore. In Bush v. Gore, O’Connor persuaded a wavering Justice Anthony Kennedy—the critical vote to the decision and outcome of the 2000 presidential election—to tip right with her Fourteenth Amendment equal protection argument. That move ended the Florida recount. Justice Stephen Breyer thought he was close to persuading Kennedy to join him in his equal protection argument, which would have allowed the recount to go on. O’Connor then persuaded Rehnquist, Scalia and Thomas to join her argument even though, the author writes, Scalia later privately called that argument “as we say in Brooklyn, a piece of shit.” Kennedy penned the main opinion, but O’Connor wrote the phrase that the court’s holding was “limited to present circumstances.”
>> O’Connor reportedly was “furious” about Alito. Former acting solicitor general Walter Dellinger recounted a private conversation with O’Connor about Justice Alito in 2007, a year after Alito succeeded her. Dellinger said: “She was furious about Alito. She viewed him as a betrayal of all her accomplishments. She told me: ‘The last thing you needed was a fifth Catholic man.’” Thomas said that O’Connor regarded the Catholic justices as “rule-bound” as in their faith with its fixed catechism. O’Connor also saw Alito as aloof and told a friend, “He has no sense of humor.” Since succeeding O’Connor, Alito has taken more conservative positions than she did in abortion, death penalty and other areas. In a 2009 interview with The National Law Journal, O’Connor said there was an expectation — “indeed hoping” — her successor would be a woman. “There was a little backsliding when I left,” she said.
>> O’Connor was devastated by her breast cancer diagnosis and doubted her ability to handle the mastectomy and chemotherapy as well as her chances of survival. Her husband wrote of Justice Antonin Scalia, with whom she often locked horns: “He was the only justice to whom SOC really unloaded her emotions when she was most devastated. I told him that when SOC called him and unloaded on him, that was a real compliment. He said he took it that way.”
>> O’Connor had a pointed question for one of her would-be law clerks. Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit recommended his clerk, Sri Srinivasan, now a judge on the D.C. Circuit, to O’Connor for a clerkship. Srinivasan asked to reschedule his interview from a Friday to a Monday, according to Thomas, so he could have a romantic weekend out west. O’Connor was annoyed. When Srinivasan went to the interview, she asked, “Are you really interested?” He assured her he was and when he was leaving, he mentioned he was a golfer. O’Connor, an avid golfer, had set up a putting green in her clerks’ area and said, “Let me see you putt.” With shaking hands, Srinivasan lined up a 10-footer and sank it. “OK, I’ll call you,” she said.
>> O’Connor’s famous line in the 2003 affirmative action decision, Grutter v. Bollinger. “We expect that 25 years from now, the use of racial preferences will no longer be necessary” — was not a deadline. She told Thomas: “That may have been a misjudgment.” And after her retirement, she said: “There’s no timetable. You just don’t know.” The next major affirmative action case to reach the Supreme Court could arrive from Massachusetts federal court, where a challenge to Harvard College’s admissions policy is pending.
>> In late 2013, O’Connor and her friends realized that she was having memory problems. She was aware that her mother and her aunt had suffered from Alzheimer’s. The disease also had taken her husband. “Her greatest fear was that she would get it,” according to her brother Alan, as reported by Thomas. O’Connor, according to Thomas, rebelled against the diagnosis and then accepted it. When she left Washington in 2016, she told a close friend how happy she was to have had her as friend. “I felt she knew the down slopes were coming. I felt she had come to this moment with herself, that things were changing, things were coming to an end,” Cynthia Helms told Thomas.